DARRYL CONQUEST v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4551-10T3

DARRYL CONQUEST,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

December 26, 2012

Submitted November 7, 2012 - Decided

 
Before Judges Alvarez and Waugh.

On appeal from the New Jersey State Parole Board.

Darryl Conquest, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Darryl Conquest appeals from the March 30, 2011 final decision of the New Jersey State Parole Board (Board) affirming the three-member panel's denial of his parole application.1 On June 1, 1976, Conquest was imprisoned on consecutive life terms for two murders, N.J.S.A. 2A:113-1, as well as an additional twenty-three to twenty-seven years on other charges.

Conquest became eligible for parole on a second occasion on May 26, 2009, having served approximately thirty-three years and seven months of his sentence. The hearing officer referred the matter to a two-member Board panel pursuant to N.J.A.C. 10A:71-3.15(b).2 The panel denied Conquest parole after determining that:

[c]ompletion of numerous programs has not helped to develop any insight or understanding of his criminal thinking. Attempts to portray himself as the non-participant defendant, yet it was his plan. He had the knife, but claimed he went to the door first, therefore he couldn't have the knife when he entered. He repeatedly avoided all behavioral questions with vague or no answers. He claims to have no knowledge of why he has been in [management control unit (MCU)] so long or why he was placed there.

The panel acknowledged the mitigating factors, including Conquest's participation in institutional programs, his average to above-average institutional reports, the absence of institutional infractions since 1998, and his attempts to enroll in additional programs.

When the two-member panel denied release on September 2, 2009, the matter was referred to a third Board member. On March 17, 2010, the three-member panel denied parole for essentially the same reasons expressed by the two-member panel. The reasons included Conquest's prior criminal juvenile history. Additionally, the three-member panel noted that Conquest's criminal convictions became "increasingly more serious," while opportunities in the community, such as juvenile probation or adult parole, did not deter him from subsequent criminal behavior.

The three-member panel further observed that Conquest minimized his involvement in the murders and blamed others for his "life long history of violent and maladaptive behavior." The three-member panel also relied upon a confidential document in reaching their decision.

Conquest appealed to the full Board, which affirmed the three-member panel decision on March 30, 2011. That final agency decision, similar to earlier decisions in the matter, acknowledged the mitigating factors, and addressed Conquest's contentions that the three-member panel misinterpreted the circumstances of the murders as an attempt to minimize his conduct and abused its discretion by establishing a lengthy future eligibility term despite the mitigating factors.

On appeal, Conquest raises the following remaining points of error:

POINT ONE3

THE RESPONDENT ARBITRARILY DENIED APPELLANT PAROLE BECAUSE IT FAILED TO CONSIDER RELEVANT, EMPIRICAL EVIDENCE THAT HE HAS REHABILITATED HIMSELF. THAT HE HAS BEEN INSTITUTIONAL CHARGE FROM FOR [SIC] 14 YEARS THIS IN VIOLATION OF THE LEGISLATIVE INTENT OF N.J.S.A. 30:4-123.53[a] AND 55c; THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1, AND ARTICLE V II 2 OF THE NEW JERSEY CONSTITUTION.

[REPLY BRIEF]

THE NEW JERSEY STATE PAROLE BOARD ARBITRARILY DENIED APPELLANT PAROLE BECAUSE IT FOCUSED ON HIS CRIMINAL HISTORY AND INSTITUTIONAL INFRACTIONS INSTEAD OF WHAT HE IS TODAY. IN VIOLATION OF APPELLANT'S FOURTEENTH AMENDMENT, RIGHT TO DUE PROCESS OF LAW, UNDER THE UNITED STATES CONSTITUTION, OF THE PAROLE STANDARD ENUNCIATED BY THE UNITED STATES SUPREME COURT IN GREEN HOLTZ v. NEBRASKA, INFRA.

We have considered the arguments in light of the record and applicable legal standards, and now affirm.

Parole determinations require "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 25 (1998) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Nonetheless, we review parole decisions as we do those of other administrative agencies, by assessing whether the Board has exercised its power arbitrarily or capriciously. Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001). In making that determination, we ask:

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Trantino IV, supra, 154 N.J. at 24.]

"A court may not substitute its judgment for that of the agency." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). As a result, we accord the Board's decision a presumption of validity, since the burden is on the challenging party to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

"In the case of an inmate serving a sentence for an offense committed prior to August 19, 1997, the Board panel shall determine whether . . . by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10(a). "[T]he Board [must] focus its attention squarely on the likelihood of recidivism." McGowan, supra, 347 N.J. Super. at 565. N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors to be evaluated including: the inmate's disciplinary infractions, the facts and circumstances of the offense, the inmate's participation in institutional programs, and "[s]tatements by the inmate reflecting on the likelihood that he or she will commit another crime."

To summarize, Conquest takes the position that the Board did not accord sufficient weight to his rehabilitation and the fact that he has not been charged with an institutional infraction in fourteen years. That claim is not supported by the record, however, as the Board specifically included that information in its decision.

The mitigating factors, indisputably present, were ultimately found to be less consequential than Conquest's "extensive and repetitive" prior criminal history including serious offenses, such as armed robbery, his escalating criminal conduct, failed opportunities while on community supervision, and prior terms of imprisonment which had no deterrent effect. Furthermore, the Board was troubled that despite documented facts to the contrary, Conquest minimized his role in the two murders which resulted in his sentence. Parole was denied based on these considerations and the three-member panel's findings.

Thus the Board's decision was reasonable, not arbitrary or capricious, and issued after review of substantial evidence in the record. The Board weighed all the relevant factors. We therefore affirm the Board's decision denying parole because of Conquest's likelihood of recidivism. Applying our limited standard of review, we find no reason to disturb the Board's determination.

1 On December 27, 2011, we remanded that aspect of the appeal regarding the Board's decision to impose a 180-month future parole eligibility term (FET) in accord with N.J.S.A. 30:4-123.56(a), which became effective on August 1, 2010. That statute provides that "in no case shall any parole eligibility date scheduled pursuant to this subsection be more than three years following the date on which an inmate was denied release." This amendment, however, was repealed effective May 9, 2011. See L. 2011, c. 67, 1.

2 That regulation provides: "In the case of an offender serving a term for the crime of murder, . . . the hearing officer shall refer the case for a hearing before the appropriate Board panel." N.J.A.C. 10A:71-3.15(b).

3 Conquest's second point concerning his FET length is not considered on appeal since the issue has already been remanded.